House of Commons Hansard #26 of the 37th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was judiciary.
Randy White Canadian Alliance Langley—Abbotsford, BC
Mr. Speaker, I happen to think performance is related to remuneration. In a country like ours one does not issue incomes or remuneration without having some accountability and some performance associated with it.
In this case we are talking about remuneration of judges. I choose to talk about performance in conjunction with remuneration of judges. I think it is appropriate as do a lot of people with and for whom I work.
John Bryden Liberal Ancaster—Dundas—Flamborough—Aldershot, ON
Mr. Speaker, that was precisely the point. The problem is that the member is mixing performance with remuneration, and it is precisely that kind of interference with the courts that the bill is designed to avoid.
That is why this remuneration is described in an act of this parliament. It is to take it out of the hands of government. It is to take it away from this idea that if one does not perform as I suggest, as I the government want or as a member of parliament wants, we will change the remuneration. We will lower it. That is precisely what we have to avoid and what we have to protect if we want to have the kind of arm's length judiciary that this democracy needs.
Yes, Mr. Speaker, that member is on another planet in comparison to this member.
Randy White Canadian Alliance Langley—Abbotsford, BC
Mr. Speaker, the problem is that there is no separation. Judges are appointed for life by the political party that is in power. It happens to be the Liberals for the third successive time so we have a Liberal judiciary. That is why it is not separate. Politics are up to their ears in the judiciary.
John Bryden Liberal Ancaster—Dundas—Flamborough—Aldershot, ON
Nonsense. That's why they are appointed for life.
Randy White Canadian Alliance Langley—Abbotsford, BC
He says that is nonsense. Can anyone believe that?
Randy White Canadian Alliance Langley—Abbotsford, BC
Many people involved in the Liberal Party over there, as lawyers, have moved up into the judiciary. The decisions in many cases are Liberalized decisions.
Randy White Canadian Alliance Langley—Abbotsford, BC
It is not separate at all. The government attaches a very close relationship between politics and decisions in the judiciary. I am not telling any secrets.
John Bryden Liberal Ancaster—Dundas—Flamborough—Aldershot, ON
Mr. Speaker, so much for the independence of judges. I want to put on the record that this member is not a lawyer. This member does believe that there are reforms that can be done to our judiciary but this member also believes that politics, the judges and the courts should be as separated as much as humanly possible, and that is precisely what the bill is designed to do.
Randy White Canadian Alliance Langley—Abbotsford, BC
Mr. Speaker, he actually thinks that politics and the judiciary are separate from a party that appoints judges from lawyers who have been with the Liberal Party, that appoint parole boards, immigration boards, refugee boards and harbour boards. I cannot believe that anybody on that side would think there is a separation between politics and the judiciary. That is just not the case.
Bill Blaikie NDP Winnipeg—Transcona, MB
Mr. Speaker, I certainly hesitate to bring this exciting exchange of opinions to an end, but perhaps those two members will be able to engage themselves fruitfully in some other context without the benefit of an audience.
I have a few remarks to make before we send the bill off to committee, as I think we should probably do with some expeditiousness. It is something that had progressed quite far, if I understand correctly, in the last parliament and there does not seem to be a great need to beat it to death in this one, particularly at second reading. If there are amendments to be suggested or made, or if further discussion is needed on the details of the bill, it seems to me that is something that can be done in committee.
A few remarks would nevertheless be in order. In the context of our overall opposition to the bill, the NDP does see some merit in some aspects of the bill, particularly those aspects that have to do with the creation of unified family courts and justices to deal with them, as well as the division of annuities, which is also found to be a positive element.
However the major thrust of the bill, which is where we have some reservations, is to provide judges with big raises. It is not that judges should not be well paid. I think most Canadians would contend that they are well paid. It is a question of whether they should be paid even more.
I have noticed that one can never separate out discussions about pay raises, not just with respect to judges' pay raises but also with respect to remuneration for MPs and various other categories of people, from the context. The context in which the NDP operates with respect to the bill is the way in which so many other aspects of our justice system are being starved for money.
We have a bill before us that gives an 11.2% increase to people who are already making well over $120,000 or $130,000 a year when there are so many other people within the justice system, equally important to its proper functioning, who are not getting this kind of increase and are not making that kind of money. They may also have to deal with many of the stresses and strains that come from years of cutbacks to the justice system. When these raises come in that context, it is a little hard for us to stand up and say amen to this without taking the opportunity to bring forward some of these other concerns which I think are quite legitimate.
Many would contend that there is a crisis in the justice system and that if money can be found to increase the salaries of judges then money should also be found to address some of the other very serious problems that exist within the justice system.
In many provinces crown attorneys do not have sufficient resources to prosecute the crimes that come before them. Surely that should be a priority if we are concerned about justice. In many parts of the country legal aid lawyers do not have sufficient resources to ensure proper fundamental freedoms are met and that trials are done in a proper way. That results in many injustices not only for the accused but also for the victims and those involved in the justice system.
Anything that tends to increase and aggravate delays within the justice system is a problem. Certainly a lack of resources contributes to a lot of the delays that people experience. We are saying that if there are resources to deal with pay raises for judges then why are there not resources to deal with these other problems in the justice system.
These are just some opening remarks. I look forward to a further study of the bill when it gets to committee. I must say though that I found the exchange between the Alliance member and the Liberal member somewhat interesting. I think the Liberal member makes a point when he says that we would not want a situation in which judges felt they had to please politicians in order to maintain their remuneration or in order to be eligible for raises in the future. I do not think that would be a good thing because that would imitate, to some degree but to a much lesser extent, the flaws of the American system where they elect their judges. Here we would have judges answerable to people who were elected. That would introduce an element of politics into it but it would be qualitatively different than the politics that are already in the justice system.
The Alliance member quite properly pointed out that judges tend to be appointed, not always but in many cases, from the ranks of the ruling party. If the same party is in power over many years, it tends to create a situation whereby people begin to see the judiciary as politicized in the sense of the appointment process.
Once people are appointed then presumably they have a great deal of independence and their appointments cannot be revoked. To the extent that good appointments are made, even if they be appointments from within the ruling party, the politics is removed from the system to a certain degree after the appointment.
I think people are fearful when they hear some of the things the Canadian Alliance member said. He said that people would like the politics to stay throughout the judicial process and that there be some answering to the political process at certain stages or at some critical point in the life of a judge.
Having said that, I think it is quite legitimate for Canadians, whether they be Alliance members of parliament or others, to be critical of decisions that judges make. I do not think that there is anything wrong with that. Judges are not beyond criticism or above criticism. I think all Canadians from time to time, including myself, are somewhat bewildered sometimes by the judgments some judges make.
However I do not think that is a matter that should effect a debate on how to compensate judges or remunerate judges. It may be an opportunity for somebody to get up and get a few things off their chest. That is okay. That is what parliament is about and that is the context in which to do that.
The Alliance member was quite within his rights to use a bill on judges to talk about what he did not like about judges or what he did not like about certain decisions or pattern of decisions that judges make. There is no problem there. To suggest a connection between meeting a certain political criterion and remuneration I would think would be something that everyone, and perhaps even the Alliance member himself, would want to reject.
I find it interesting that the bill responds to a recommendation that the remuneration of judges be taken out of the political context altogether and that parliament from here on in accept uncritically or without amendment the recommendations made by the commission.
To the extent that the Alliance finds itself against this there is a certain irony. If I have heard correctly over the years, this is the very thing it has advocated for members of parliament. Those members have said that we have to take the politics out of the determination of the salaries of members of parliament: take it away from members of parliament, give it to an independent commission and be prepared to accept the recommendations of that commission. If I am being unfair to what they have said over the years I hope somebody will correct me, but it seems to me that is what I have heard many times, that this is something that should be decided independently.
The bill does just that with respect to judges. Either we have some inconsistency in principle with respect to how we allocate or set up independent commissions to make these kinds of judgments or we have an interesting variety of opinions on the matter as we sometimes get from members of the Alliance.
It struck me as ironic that this issue should be criticized. Would people suggest that it constantly be a decision of parliament to determine what judges are paid? I have seen that for 20 years. Every time the government feels we have to give judges a raise, we have a debate about judges and the same old speeches are trailed out.
Perhaps the idea of giving it to an independent commission is not such a bad idea after all, but it does not mean that we have to agree necessarily with the way in which the government handles these particular recommendations. For our part we feel that the government would be on a lot stronger ground if at the same time it was committed to addressing a lot of the other inadequacies in the justice system.
Brian Fitzpatrick Canadian Alliance Prince Albert, SK
Mr. Speaker, the comments of my friend from the NDP were very good comments. There are a couple of matters I want to point out to him.
He mentioned something about it being easy to criticize the courts in Canada. I know it is easy to criticize an umpire or a referee in a hockey game and to deal with that, but I can say as a practising lawyer myself that one has to be very careful about what one says about judges and their judgments. It is far easier to say things in the House than it is outside the House, unless we want to find out what the rules are for contempt of court. I point that matter out.
I want to put something in perspective too. Comments were made about the American system of justice. I can think of a lot of great supreme court judges in the United States: Justice Holmes, Justice Warren and Justice Marshall. They were appointed but went through a very rigorous appointment process. They have a lot of power like the judges in Canada. The public there believes it has a right to know what agenda these people are bringing to the courts. This is vetted and is publicly dealt with.
A person who I personally and politically had a lot of admiration for during the Reagan era was Robert Bork. He was turned down in that process. That would probably make my NDP friends happy. It did not make me happy but it showed that the system worked.
In our system we do not get any scrutiny on that. Basically, my own reading of how one gets to be a judge on the Supreme Court of Canada is to be a good donator. A person who earns $110,000 a year is going to have a lot better chance of getting into our Supreme Court of Canada or our courts of appeal. Another thing would be to be a good fundraiser. That means being a lawyer, but if someone has one of those criteria and is with the right party, chances are pretty good he or she will be there.
I am not exactly sure the public or anyone else would say that is the proper way of determining who should be in the courts. I want to put a few of those points in perspective. There have been a lot of excellent judges on the supreme court of the United States over the years. We can criticize that system all we want, but I think the level of judicial decision making that has come out of the U.S. supreme court generally has been far superior to our system here.
I want to perhaps get my learned colleague's reaction to these comments. I do not think we are advocating electing Supreme Court of Canada judges but we are talking about having a good independent system in place to make sure we get the very best men and women as our judges.
Bill Blaikie NDP Winnipeg—Transcona, MB
Mr. Speaker, first, I would like to extend my congratulations to the member for Prince Albert. I believe this is his first parliament. Of course, he has a very distinguished pedigree in terms of the constituency but I do not know about the party. Members have represented Prince Albert in the past, some from my party and also a couple prime ministers, I believe.
In any event, the member makes a good point. It is certainly not a point that I was wanting to disagree with. I just did not talk about it.
He is asking me what I think about the view that perhaps we should have a way of appointing our supreme court which gives Canadians more of an opportunity through the appropriate parliamentary committee to hear what they think. This is not to politicize it or get them elected or anything like that, and not to uncritically imitate the American system necessarily, but something to take into account the fact that judges, since the inception of the charter, have a lot more say about a lot more things than they used to.
Perhaps an appointment process that was created before the charter is not adequate to that task. I am sure that is a matter of debate within all political parties as we try to wrestle with the increased role of the judiciary in our society and what we welcome, what we have reservations about and what we should have concerns about as parliamentarians. Some people have more concerns than others. I think the point the member raises is a legitimate.
With respect to criticizing judges, I did not criticize any judges. In fact, it is members of the hon. member's own party, some of whom have made a political career out of criticizing, not judges in the abstract, but specific judges and specific judgments. I would hope he might share the advice he had for me in terms of contempt of court and exercising caution with respect to criticizing judges with some of his caucus members at some point.
Rob Anders Canadian Alliance Calgary West, AB
Mr. Speaker, I recognize that the hon. member who just gave us his speech with regard to this particular bill is populist. I recognize from the comments he made that he does not see the election of judges as the way he would go. I happen to favour the idea of electing judges, but obviously it does not carry the day with all.
He alluded in his comments to the idea that possibly the appointment process might need to be changed. My question would be along the lines of what ways or suggestions he might propose for changing the appointment process. I happen to like the idea of people being brought before committees, which are responsible in some way or degree for those particular departments, to face some sort of vetting process. There was earlier discussion on this very matter in terms of the process that goes on south of the border, but certainly there are other ways it can be done.
I would just like to mention in the question as well that the way I am familiar with the process working at least in my province, and I am sure it is not the only province that this is done for, is basically along the lines of political favours, whereby a group of cabinet lawyers or possibly, if there is not enough lawyers in the cabinet, the caucus lawyers in a particular party gather around and names of potential appointees are suggested. They run the gauntlet. During the process the lawyers in that particular governing party determine it by saying “Know him, know him, don't know him”. If a person gets enough know hims and general favourable nods, the person gets the appointment. If a person gets more do not know hims, where people say they know him but they do not happen to enjoy his particular political stripe, then he does not get appointed.
The previous comment about people being good donators or good fundraisers does have validity in terms of how people get some of these things. Does the member think that that process is a fairly accurate way of describing some of the ways in which people get chosen to be justices? Does he think that there is some form or process that would be appropriate? What does he particularly think about the idea of running appointees past a cabinet committee that is in the area of responsibility?
Bill Blaikie NDP Winnipeg—Transcona, MB
Mr. Speaker, I will take the member's word on it for that damning critique of the way the provincial government appoints judges in his province. I would not want to dispute that. Hopefully it is something the people of Alberta will take into account today.
I go back to the first part of his question or comment when he talked about the appointment process. I seems to me that like so many other things around here everything is connected to everything else. He suggested that possible appointees, or recommended appointees or candidates for appointment to the supreme court should be brought before the appropriate committee of the House of Commons for vetting, or for conversation, or for investigation or whatever. To do that without parliamentary reform will not do the trick.
The American system works because the government does not control the committees. The American system works because there is some chance that people who are of the same party as the appointer, the president, might not do what the president wants. There is a real process.
We have a problem in Canada. There are all kinds of things we cannot really reform unless we reform the House of Commons. To just bring candidates for nomination to the supreme court before a committee that is run by Liberals for Liberals and have them rubber stamped in the way that so many other things are rubber stamped, what would that accomplish?
I do not want to be the counsel of despair but on the other hand we have a bigger job ahead of us than just putting them before a committee. We have to change the committee and parliamentary culture in order to make it a meaningful event, otherwise it will be another charade like so many of the other things that happen around here.
Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS
Mr. Speaker, I commend the words put forward by my colleague, the House leader for the New Democratic Party. He has put forward a number of pearls of wisdom and some provocative issues that add to this debate. This is a debate that could be very far reaching should we choose that route.
Bill C-12 is a fairly focused piece of legislation when it comes to remuneration for judges. It speaks to process and speaks of a committee that will and has made recommendations on the issue of remuneration.
There are a number of important elements to this bill and members have discussed some in great detail, such as the shortcomings of judges, their decisions and the appointment process. All of that is worthy of debate. To quote my friend from Winnipeg—Transcona “parliament is certainly well healed, well versed for that to take place”. Parle, meaning to speak, is what we are here to do.
This particular subject matter is one that has been very controversial for not only members of the House but for Canadians generally. People are quite rightly concerned about the ever increasing, some would say ever expansive, role of judges in challenging laws. The charter plays a great deal in that.
There is specific concern about the resources to which individuals working in the justice system are sorely in need of support, whether it be legislative support or resource support. This is another huge expansive topic that we could speak to at this time. This particular legislation is aimed at trying to make a distinct difference between the political process of appointment and process of remuneration, or the salary structure that is in place for judges.
The Conservative Party is supporting this bill. We look forward to having it come before committee where some of the other issues that might stem from the bill can be looked at. I have some limited experience in the judicial system, but for the most part, I believe the majority of judges in this country are hardworking. I believe they perform an incredibly important task. Arguably, members of the judiciary, whether at the provincial court, or appeal court or supreme court level, have more individual discretion over a person's life than members of parliament or other officials in Canada. They have incredible discretion in their hands.
The Conservative Party also believes in being responsible to taxpayers. We support the government's acceptance of the recommendations which were made by the independent Judicial Compensation and Benefits Commission. This is now entrenched by virtue of Bill C-12. This is another important aspect of consideration when it comes to better pay for judges. The compensation that is being put forward is coming about on the recommendation of an independent commission.
The first reading of this bill on February 21 set forward that the Judges Act will implement the government's response to recommendations made by the 1999 Judicial Compensation and Benefits Commission. That came about historically as a result of a decision from the Supreme Court of Canada in 1997 that established new constitutional requirements for determining judicial compensation and requiring every Canadian jurisdiction to have an independent, objective and effective commission. If there is to be credibility and accountability, it is extremely important that it is arm's length from government and that it looks at the issue of compensation.
Delving into that further, it also amends the Judges Act to increase judicial salaries and allowances. Let us be very clear about what the bill does. It raises judicial salaries. It is intended quite clearly to improve the current judicial annuities scheme, to put in place a separate life insurance plan for federally appointed judges and to make other consequential amendments to the Judges Act and the Supplementary Retirement Benefits Act. It is certainly well intended to give judges the security they need.
In recent years there has been a lot of concern about criminal activities in the country. That has led to much of the controversy and frustration on the part not only of victims but of those who work actively in the legal system.
Some of the decisions we have seen judges make lead people to question whether the system is working. However let us question the decisions rather than the personalities and the judges themselves. Let us look at the decisions in isolation, based on the facts from which judges made those decisions. If criticism is then merited, it is fair game. There is a forum and a way to appeal. There is also ample discussion in the general public about the wisdom of judges' decisions on occasion. That is fair game. Once again, that is healthy. That is democracy.
The separate and important issue is not to let that criticism and discussion permeate the issue of whether we should compensate judges fairly or whether we should look at their salaries as a separate issue from their performance on occasion.
Let me put it another way. The issue of judges' salaries is important, but we must ensure judicial independence is always maintained, that judges are not tempted by any outside influence that could compromise any ruling from the bench. What I am getting at quite clearly is that with some of the elements of organized crime in the country, and I hate to raise the spectre, there is the real possibility of bribery, judicial interference and temptation if our judges are not being compensated fairly.
Let us also put this into perspective in terms of salary ranges in Canada. We must look at other functionaries and their pay scales, for example heads of corporations, doctors and athletes.
Certainly performance is one issue, but the function judges perform is also something we must take very seriously. The performance a judge puts forward in his or her daily exercise is crucial to the preservation of justice. It is an absolute cornerstone if the system is to function properly. Judicial compensation and benefits very much preserve the independence of judges and their ability to do the job.
The compensation commission is appointed for a four year term. Its mandate is to consider the compensation and benefits for judges and to make recommendations to government. It does so every four years. It reviews the situation and takes into consideration factors including the salaries relative to the role they perform. It must report to government within a nine month period. It talks of modernization and talks of keeping pace with other current pay scales. It calls for setting a certain priority relative to other professions.
I refer once again to the comments of my friend from Winnipeg—Transcona. There is ample evidence that there are problems in our justice system with crown prosecutors, legal aid, lawyers, court officials and police, those who administer the day to day meting out of justice. Those who are in the trenches, in the MASH unit of the judicial system, similarly must be compensated fairly.
Perhaps there is a methodology or a system in place where we could have some sort of association between reviewing judges and their pay scales and those of the functionaries that perform the very important day to day tasks before the judges which allow the judges to make their decisions.
Crown prosecutors and legal aid lawyers are under such terrible constraints of caseloads and backlogs that they are not able to put forward to a judge crucial information to enable him or her to make those decisions. Perhaps there is wisdom in broadening the discussion and perhaps even broadening the legislation at some point in the near future.
Turning back to the commission itself, the commission makes a recommendation of a salary increase of 11.2%. I note this is significantly less than the 26.3% increase proposed by the judiciary itself. Clearly that would not be appropriate. Clearly we could not have judges themselves making recommendations on what their pay increase should be. That would be akin to what we do as members of parliament, and we know how the public feels about that.
At least the bill does not go down that road. At least the bill respects the fact that there is a judicial committee, arm's length from government, that is making the recommendation. Once again perhaps we in this place should be learning from that caution.
The commission's recommendations were based on research comparing judges' salaries to those of private sector lawyers. I would suggest, and I challenge others to talk to some high ranking lawyers who work for big firms, that there are many who literally would be taking a pay cut if they were to take a judicial appointment.
If we want to put the cream of the crop on the bench, if we want the very best litigators and lawyers to be sitting on the bench making these crucial decisions, we must be prepared to compensate them fairly, and in some cases comparable to what they could make in the private sector.
The salary performances and bonuses of senior federal deputy ministers, for example, also bear scrutiny and comparison. The importance of salary and benefits in attracting outstanding candidates to the bench cannot be understated. Quality is an absolute necessity. It is too important not to strive to have the best of the best on the bench. What an important function it is that judges perform. I reflect on that.
The Judges Act will also officially establish the compensation committee for the long term. It will be required, as I stated before, to convene every four years, make recommendations and come forward with those recommendations nine months after they have commenced. Its mandate is to inquire into the adequacy of judicial compensation and benefits.
The committee's mandate consists of three important considerations: the economic conditions of the country, cost of living, overall economic position of the federal government vis-à-vis budget surpluses, et cetera; the financial security of the judiciary to ensure judicial independence; and the need to attract outstanding candidates. Those are the basic criteria for which the committee would meet. They are certainly important criteria.
The recommendations, I think it also bears noting, are not binding, but the supreme court decision requires that the government publicly justify any decision of acceptance or rejection of the recommendations. This response is reviewable in the court and must meet the legal standard of simple rationality.
A common sense strain runs through the commission and the government's use of the information it provides. It would be measured by the reasons and evidence offered in support of the government's decision. There are some checks and balances within the bill that are laudable and that meet the objectives it seeks to address.
The salary regime, the pressures and independence are also very important. The pressures that judges feel is also a consideration when they decide whether they would accept an appointment. We have talked a bit about the appointment process but salary is certainly a factor. Financial security is certainly a factor for an individual to accept an appointment.
I would like to put on the record the yearly salary of the judges of the Supreme Court of Canada. The basic salary for chief justices is $230,000. The puisne judges make $213,000.
The yearly salaries of the federal court judges are as follows: the chief justice makes $196,000; 10 other judges of the Federal Court of Appeal make $179,000; the associate chief justice of the federal court makes $196,000; and judges in the trial division make $179,000.
The current salaries in accordance with section 11 of the act and the adjustments in section 25 are also as follows: the Tax Court of Canada chief judge makes $196,000; the associate chief judge similarly makes $196,000; and other judges in the tax court make $179,000.
The yearly salaries in the provincial court of the province of Nova Scotia are as follows: the chief justice, $196,000 and the court of appeal judges, $179,000. I am putting these salaries on record because it is important that we keep the figures in mind when we look at salaries of other occupations, other heads of corporations.
Those are undeniably large numbers for the average Canadian to consider. They are significant and yet appropriate rates of pay must be put in place if we are expected to get the highest quality of individual into those jobs. Judges are undeniably the cornerstone of democracy and defenders of fundamental rights from the bench. If they are to have that respect, ability and prestige they must be remunerated.
The bill is a good one. We may need to have a look at some of the specifics and potentially a look at the tie-in to the shortfall in other areas of our judicial system.
The priorizing of this bill in returning to parliament is one we might question. However I suspect it is because there will be speedy passage. One would hope that the bill will go to committee and will be dealt with quite quickly.
The bill is something that is necessary to get in place quickly. If there is any anxiety or pressure brought to bear by delaying Bill C-12, it will not be healthy for our current judicial members.
There is also reason on occasion to recite some of the atrocious and ridiculous decisions that have come out of the courts, but I would not suggest there is merit in doing that in the context of this debate.
My final point is that there are ways to correct some of the shortcomings. There are ways to approach the remuneration of judges. We can review some of the shortcomings. We can cite chapter and verse some of the decisions we take great umbrage with, great outrage as to what the findings might have been.
We can then question the quality of the judiciary. We can try to make the argument that we should not reward judges by increasing their salaries based on perceived performance, or lack thereof in certain instances, and that therefore judges should not get a raise. That would be the rationale in simple terms.
Or, we can look at it in terms of how we make sure it does not happen with greater frequency, that we do not continue to have substandard individuals in positions on the bench where they would make poor decisions. How do we attract the very best? How do we ensure we will have individuals who will let their names stand and who will come forward to serve, which is a great privilege to do in that capacity?
How do we do that? We compensate them fairly. We ensure that they will be given salaries on par with other important positions in society and that they will be given the financial respect they deserve.
Most judges have served with great distinction under difficult circumstances and are forced to make real gut wrenching decisions on a regular basis. Quite clearly they struggle with those decisions. They do not always get it right. I am not here to defend the judiciary at great length. I suggest the system itself, although not perfect, is the best in the free world.
We must clearly ensure that we attract those with the greatest ability. On the whole judges perform their task quite adequately. The legislation has led to an interesting debate of the various philosophies of how the judiciary and the appointment process and the politicization of it should work. However Bill C-12 is exactly what we need in attempting to distance politics from remuneration. The appointment process is something we should look at next.
The Conservative Party will be supporting it. We look forward to having it at committee where we can discuss it further.
Brian Fitzpatrick Canadian Alliance Prince Albert, SK
Mr. Speaker, the member from Nova Scotia touched on a number of areas that I think are of interest here.
One of the comments was in regard to the question of bribery. I would have thought that for most men and women in law school who were told that some day they would have the privilege of serving on a court of appeal or the Supreme Court of Canada the first thing that would come to mind would be service above money.
Second, it seems to me that the need to have this vetting process is very important in order to make sure that the people we are appointing to the courts are people who we are satisfied have high levels of integrity and personal behaviour. That is something I think this process could identify. Even if they have different ideologies from mine, I can respect that they are honest people and of good integrity.
Actually if money ensured high levels of integrity in our world, Hollywood would be the best place in the world to go to find that. The sports world would be another area. Presumably the people who are getting the most money would be the people who would conduct themselves with the highest standards of integrity. I am not exactly sure the money issue is as big as people make it out to be. I am willing to guess that $190,000 a year would put someone in the top 1% in the country. In some provinces it would be one-tenth of 1%. In Saskatchewan there are not many people who make $190,000 a year, and I am sure that in the province of Nova Scotia they are few and far between as well. In Toronto or Calgary it may be a different situation.
There is another area I am concerned about, and I raise it for my learned colleague from Nova Scotia. It is the vast disparity in lawyers' incomes in this country. I practised law in Saskatchewan for 25 years and I looked in envy at the income levels of lawyers in Toronto and Calgary. There are big differences. Maybe in a place like Toronto, where a $500,000 a year income level is not unusual for skilled lawyers, there may be a problem attracting people, but in Saskatchewan there would be no shortage of competent lawyers available for judicial appointments at a salary of $190,000. They are competent people and the lineup would be a long one. I am not exactly sure that the bill addresses that sort of concern about the vast disparity in incomes.
I cannot explain this vast disparity in incomes in these regions. I know that Alberta and Ontario are like the beacons on the hill in this country. They have booming, growing, prosperous provinces that attract thousands of people and lawyers from other regions of the country in massive numbers, and they do very well economically. However, I am not from one of those areas. I am from one of those areas where we have had a different philosophy and a different way of doing things and our standard of living and our incomes are much lower. Maybe the member from Nova Scotia could address this concern. Maybe we need some flexibility in our levels of remuneration based on the region of the country one comes from.
Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS
Mr. Speaker, I thank my learned friend for the comments. He raises a number of interesting points. I am not going to stand before the House and debate the merits of or try to in any way defend some of the inflated salaries of certain professions. I am a huge sports fan, Mr. Speaker, as I know you are, and as are many members of the House, but I would never try to justify the merits of paying an athlete literally hundreds of millions of dollars on occasion to sign long term contracts versus the paying for the performance of a researcher who is trying to find the cure for cancer or of an individual who is volunteering to go into a war torn area and put his life at risk to try to aid others.
These discrepancies and anomalies in certain professions and in the remuneration that people receive are in many ways cannon fodder for debate and criticism, but there is no way to justify or even begin to reconcile the remuneration and the salaries that are put in place.
Having said that, I come from a region not unlike the hon. member's when it comes to the salaries that a person would command in our profession as a lawyer or in other professions. There are certainly cost of living considerations when one looks at other regions of the country. Calgary, Toronto and Montreal are perhaps the most obvious that come to mind when one considers the salaries in some regions versus others.
Whether that would merit an examination of regional bonuses when it comes to judges or judicial appointments and differences in the judicial salaries of his province of Saskatchewan or my own of Nova Scotia vis-à-vis Ontario, I would suggest that it might cause more consternation and more difficulty than it would resolve.
I do not think I particularly agree that we should be examining how to somehow perhaps skew the compensation based on the salary levels of various provinces, although it does raise problems. Are we going to be drawing the very best from Ontario if we cannot offer them a salary in the range which they command in their profession currently? It is a difficulty that I guess can only be resolved when one can peer into the heart and soul of a person who wants to serve in that capacity.
I would suggest, and I think the hon. member would be quick to agree, that anyone in the legal profession who has practised law as long as he has and is now serving his country with distinction in the House of Commons would consider it a great honour to be appointed to a judgeship at any level. That is part of the individual personal decision that one has to make, along with remuneration, job satisfaction and any number of other listed factors that come into play when a person makes a decision.
The hon. member raises a number of interesting points. I look forward to debating this issue further in committee and I thank him again for his comments.
Rob Anders Canadian Alliance Calgary West, AB
Mr. Speaker, I realize that the hon. member of course was previously, and I imagine still is, a lawyer himself, so he speaks with some level of knowledge about this, which many others in the country would not have.
I would like to ask him, as I asked the colleague from the New Democratic Party who spoke before him, about what he feels might be a way to improve the appointment process. In his speech he talked a great deal about the compensation judges should be given for the type of job they do. I can appreciate some of the arguments made in that respect, but I know there are abuses in the system.
I will relate to him one example that I am aware of in Calgary, whereby a particular firm was given the nod, as it were, in terms of it being the firm's time to put forward one of its people for a judgeship. Officially it is supposed to be an open process. What happened was that someone who did wills and estates in a particular firm—and I do not want to name that particular firm even though I could here in the House—and who was not a particularly accomplished lawyer sent in an application. When the government received it, it took that application to be the application that the firm in a sense had anointed as its application and that person was appointed.
Later on, two individuals, one of them representing the government, happened to meet on an elevator. The one representing the government said to a senior partner with the law firm that he hoped everything had worked out okay, that the government had received the firm's appointment and everything was taken care of.
The senior partner said that the firm's selection had not yet been made. The government official said that of course the firm had made its selection, that the government had the piece of paper, and he asked if that was not what it was supposed to get. The official said he thought that was what the firm wanted. The lawyer then replied that he did not even know who the individual was and that he would look it up on the letterhead.
He had to look at a list of about 200 lawyers and finally found the lawyer who had been struggling in wills and estates. He then realized that someone had openly sent in a bid and had been given the judgeship.
I tell the story because I know there have been problems. I know that people have been appointed to these positions—
Judges ActGovernment Orders
The Deputy Speaker
I am sorry. I was trying to catch the eye of the hon. member. Time is running very short in the question and comment period. There will only be one minute for reply, please.
Rob Anders Canadian Alliance Calgary West, AB
I am sorry, Mr. Speaker. Basically the question was this: Does the member have suggestions for improving the selection process?
Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS
Mr. Speaker, I thank the hon. member for the question and I agree that there are some shortcomings in the way the system currently works.
For example, I think a system may someday evolve where we will have judges who deal with specific types of law. I believe that the law in this country is becoming so complex there may be a need to have a criminal bench, as we currently have a tax court. There may be a need to specify that a certain individual will only hear employment law. There may be a need to diversify the bench in such a way that we may have to shrink the pool for the types of selections we are making.
Trying to get politics out of this is increasingly difficult. It is like trying to pour rum in milk and then somehow trying to siphon it out. It is a very difficult thing to do. The politics of it will be there, but if it is based on the competence, the performance and the ability of the individual, then that is certainly the base we will continually strive for.
Having the provinces further involved and having them put forward lists of competent individuals who have been vetted is an idea worth examining. The possibility of having potential judges come before committees is one idea I would not rule out. However, I believe the final selection process is always going to be the privilege of the crown and that is something we may have to examine in the future.
Brian Fitzpatrick Canadian Alliance Prince Albert, SK
Mr. Speaker, in this context I would like to ask a rhetorical question: in a democratic society, who should ultimately have the final political power and authority to make decisions?
In 1982 Canada made a major change. Up to that time we believed in the principle of the supremacy of parliament. We believed that the 301 men and women who were elected to parliament every four or five years would ultimately have the final say on our laws in Canada.
In 1982 we changed that. We brought in a constitution that included a charter of rights. The charter basically and essentially transferred the ultimate power and authority to our judges. That is like giving the referee in a hockey game the rule book and telling him that if he does not like the rules he can change them as he goes along; it is like giving the umpire at a baseball game the same kind of power.
Three premiers, all lawyers at that time and two of them Rhodes scholars, Mr. Blakeney, Mr. Lyon and Mr. Lougheed, saw great danger in this change. As a condition of adopting both constitutional changes, they insisted that we have a safeguard in our constitution. That safeguard was the notwithstanding clause. The notwithstanding clause was there to give parliament the final say on our lawmaking abilities in this place.
As a result of the federal government's unwillingness to exercise the notwithstanding clause, we have had a Supreme Court of Canada that has made some fairly major astounding decisions in our times, which have had tremendous fiscal impacts on Canada. I am talking about things that could have caught the Minister of Finance totally off guard, costing $5 billion, $6 billion or $7 billion a crack. Its decisions have had major economic and social consequences. I could mention specific cases but I do not think there is much merit in that. I will, however, mention the Singh decision, which has had a radical impact on immigration law in Canada.
What I am getting at is that if we are going to have this system in the future, we need a strong independent system for appointing people and we have to make sure that the people who are appointed are people with very high standards of integrity and honesty. That is very important.
We have already talked about some of the appointment criteria. I can give an example from my home province. It is well known among lawyers that one of the larger law firms had a lawyer in its employ that it did not really want or like, and since it was its turn to send in a name, as the member from Calgary mentioned, it sent in that lawyer's name. Unfortunately the public had to live with that judge for 20 years and with his decisions. There are a lot of inadequacies in the appointment process.
In terms of salary and benefits, I want to emphasize the point that service above monetary rewards should be the compelling reason to serve on a court of appeal or the Supreme Court of Canada. I know many noble and honourable lawyers who would find it a great privilege to be asked to serve on the Supreme Court of Canada. I have often wondered why we have to go around seeking applications from people. Why we do not seek out these folks and make sure that we get the very best on our Supreme Court of Canada? If we have a Gretzky equivalent in the legal community, why are we not seeking that person's service on our Supreme Court of Canada? I do not think money would really be a major problem with these people. They would see it as a great privilege to serve on the court.
I am a bit concerned that the court will ultimately have the power to decide whether this independent committee is independent enough. If it finds that it is not independent enough, we will receive some court decisions that sort of imply or suggest that the court would ultimately have the power to decide what are fair enumerations and benefits.
What is very important to note is that when the public interest cries out for action, it is parliament that has the final say on what our laws should be not the judges. If I go back to how I would like to see things operate and I would use the analogy of a hockey game. The league owners and teams decide on the rules. They create a rule book that they give to judges, who are called referees and officials, and they would decide off sides and whether its a goal and so on but they do not make the rules.
We are in a very difficult bind because we have given tremendous power to a handful of people at the court level. I wonder where this mentality came from in 1992. It seems to me that implicit in the whole argument of shifting from the supremacy of parliament to the supremacy of the Supreme Court of Canada was that there was something dangerous about democracy. It implies that to elect men and women to our system of government and have them make decisions is dangerous.
That sort of belief implies that because a person has spent a lot of years as a lawyer and a lot of years doing partisan things for his or her political party, and fundraising seems to be one of the things that lawyers are really good at in the partisan sense, that this somehow qualifies the person as an elite. It further implies that the elite know better than the democratic will of the people and that nine or ten people should have the final wisdom on decisions on public policy.
I find that whole notion very disturbing. Some people would suggest that if we took that far enough it would get us into an authoritarian type system. It would perhaps be a more benevolent type of dictatorship than that of other countries. However these folks are not elected. They do not have to face the media scrums after a day in parliament. They do not have to come into parliament and be accountable for their actions and decisions. They are pretty immune from it. The finance minister has to determine how he pays for their decisions and other ministers have to determine how to deal with the economic and social impact of the decisions. A lot of times it is like trying to drive a square peg into a round hole.
I think it would be far better if those decisions were made by our elected people. We have a lot problems with our elected system but, as Sir Winston Churchill said many years ago, it is a terrible system of government but it is better than all other forms of government invented by now.
I would be interested to hear what other parliamentarians think about the mentality behind the transfer of democratic power from our elected men and women to an appointed group of eight or nine people. Implicit in that appointment is that they are smarter and wiser than the public's will, as expressed through our election process, and that they are a better judge of deciding what is good for society.
My own view is that it is a liberal value. During the election we were going to debate values, but one of the legacies of liberalism is that it is better to have elites make the decisions for people. It is dangerous for people to make decisions for themselves. It is also dangerous to have elected democracies because these people are not quite smart enough. I recall one prime minister saying that we were nobodies when we were two feet out of the House of Commons. He had a lot to do with some of this stuff, if I recall things correctly.
It seems that some individuals had some good intentions. They were going to create a superior system of government, our parliamentary system and our present way of doing things. I refer to the words of William Shakespeare who said something that I think is very relevant to this topic, “The road to Hell is paved with good intentions.”
I believe the person responsible for this fundamental change in our system of government had good intentions. I am not exactly sure that living with the results of this system are really showing the sort of things we want in our society, such as accountability and good public policy. Judges can make very major decisions and simply walk away from it, leaving people sitting in parliament trying to deal with the carnage and the damage that results from these sorts of decisions.
I could give some very specific examples in recent times of those kind of decisions. The Marshall decision on lobster fishing rights off Nova Scotia would be one that is very current to me. That decision will cost us a lot of money and it will cause a lot of unnecessary conflict and division in our society. We will need to tackle those problems. The people that made those decisions in the Supreme Court of Canada are not accountable for those decisions.
I have major reservations about the bill. The Supreme Court of Canada said that if it had independent commissions to decide salary and remuneration, it would accept that. We should bear in mind that the Supreme Court of Canada will decide whether that is independent enough for it or not. With some of the cases involving provincial court judges, they superimposed themselves in there and have become the decision makers for their salary and remuneration. In Saskatchewan, there was a fairly significant increase in provincial court salaries because of this sort of approach.
Anyone who would review that process would know it is flawed. How can we have people with that much power decide salary and then use something like judicial independence as an argument for this sort of thing? Does somebody seriously think that our judges are in trouble because they are receiving $190,000 a year? Does anyone think that they do not have a roof over their heads, cannot put three meals on the table or take care of themselves, and so on? That is utter nonsense. They are in the top 1% of the country. Most Canadians would just love to have that level of remuneration.
I think the salaries for our judges have always been adequate. That is not a problem. I think it is absolute nonsense for judges to imply that somehow their judicial independence would be usurped by having salaries decided by somebody outside their own control.
They would have control in the final run as to what would be an independent committee. Parliament would not have that decision. Like all other things in society, with a government that does not wish to use the notwithstanding clause they would have the final say.
Werner Schmidt Canadian Alliance Kelowna, BC
Mr. Speaker, I was rather taken by the last couple of sentences the member expressed about the business of judicial independence.
I wonder if there could be any sort of connection between judicial independence and judicial imperialism. We have a specific attempt by the Supreme Court of Canada to actually interpret legislation, not in the form of an executive branch but rather in the form of a legislative branch.
Could the hon. member say something about that part of it and whether there is a deficiency on the part of legislation that is passed in the House? It is so broad and so general that it is almost as if parliament is saying it does not wish to deal with it and is asking the supreme court to deal with it. Are there two parts to the issue?